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CASE NO.: Appeal (civil)  4052-4053 of 2004

PETITIONER: U.O.I & Ors.                                                     

RESPONDENT: Bashir Ahmed                                                     

DATE OF JUDGMENT: 02/05/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Challenge in these appeals is to the legality of orders  passed by a Division Bench of the Jammu and Kashmir High  Court dismissing the Letters Patent Appeal filed by the  appellants and the review application in respect of the said  order.  The High Court by the impugned judgment in the  Letters Patent Appeal upheld the view of learned Single Judge  holding that the respondent is entitled to pension.   

Background facts in a nutshell are as follows:

       Respondent was enrolled as a Sepoy on 6.1.1969.  On  1.7.1976 respondent made a declaration in writing to undergo  reserve service liability of two years after discharge from  service.

       The request of the respondent for discharge from Army  service on companionate grounds was accepted and he was  discharged and his name was struck out from the strength on  6.9.1978.  Thus he had rendered service for 9 years 7 months  and 27 days in the Army which included some over stay leave.    With effect from 6.9.1980 the respondent ceased to have any  reserve liability.  As such, according to the appellants, the  respondent did not qualify for any pension in terms of the  applicable regulations.  On 21.2.2000 respondent filed a writ  petition for a direction to the appellants to grant pension.    Counter affidavit was filed in June, 2000.  Learned Single  Judge who disposed of the writ petition by order dated  28.2.2001 proceeded on the basis that no counter affidavit  had been filed.  Therefore, the assertion of the appellant that  he had rendered 15 years of service including reserve service  and was accepted on this ground alone it was held that the  respondent was entitled to pension and other benefits.  Letters  Patent Appeal was filed by present appellants taking a positive  stand that a counter affidavit had in fact been filed, the  question of the respondent rendering 15 years of service did  not arise as he was appointed in January, 1969 and had been  discharged in 1978 and the last two years service related to   reserve service.  He was not entitled to any pension because he  had not completed the requisite period of service.  The Division  Bench referred to the certificate of service of the respondent  and held that the same indicated 15 years of reserved service  and, therefore, he was entitled to pension.  An application for  review was filed, which was rejected.

In support of the appeals learned counsel for the

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appellant submitted that the learned Single Judge and the  Division Bench had clearly overlooked the applicable  instructions issued on the basis of the statutory prescription.   By Army instructions dated 29th December, 1964 the period of  service required for entitlement to pension was indicated as 10  years service with the colours and 5 years service in the  reserve. These instructions were applicable when the  respondent was appointed.  The said Army instruction was  modified by Army Instruction dated 14th January, 1976.  The  period of requisite service was changed to 15 years service  with the colours and two years in the reserve.  Admittedly  neither under the 1964 instructions nor the 1976  instructions, the respondent was entitled to any pension.  The  reserve liability certificate issued on 1.7.1976 clearly indicates  that the respondent wanted discharge from service before  completion of the colour service and in clear terms accepted  the liability to serve in the reserve for a period of two years.  It  was, therefore, submitted that the learned Single Judge as  well as the Division Bench should not have directed grant of  pension.

In response, the learned counsel for the respondent  submitted that the Division Bench looked at the original  certificate of service which in column 7 shows that the  respondent had rendered service of 9 years 1 month and 21  days with colours and 15 years and 1 month 1 day in the  reserve.  That being so, view of the High Court did not suffer  from any infirmity.  

We shall first refer to the certificate of service.  The same  was issued on 26th September, 1978.  Undisputedly the  respondent was discharged with effect from 6th September,  1978 and had been enrolled on 9th January, 1969.  His  certificate of service itself indicates this position. Therefore, the  question of respondent rendering 15 years of reserved service  by the date of issuance of the certificate of service was an  impossibility.  It is fairly accepted by learned counsel for the  appellant that there was a mistake in mentioning period; but  the respondent cannot take any advantage of the mistake  which is clearly contrary to the factual position.  Though the  Division Bench looked at the original certificate of service and  referred to the entry about rendition of 15 years of reserve  service, it failed to notice that the entry on the face of it was  absurd.  Undisputedly in the certificate of service itself at page  3 it is clearly indicated that the date of enrolment is 9th  January, 1969 and the certificate of service was issued on 26th  September, 1978.  That being so, the question of the  respondent rendering more than 15 years of reserved service  did not arise.  In any event, the entitlement to pension is  dependant upon the prescriptions in the Army Instructions  which are relatable to para 134 of the Regulations for the  Army 1962 (in short the ’Regulation’). The requisite  parameters have been indicated above.  There is another angle  which appears to have been lost sight of by both the learned  Single Judge and the Division Bench.  The respondent was  discharged in 1978 and the writ application was filed after  more than two decades.  In any event, it is not necessary to  deal with that aspect in detail as the learned Single Judge and  the Division Bench clearly erred in holding that the  respondent was entitled to pension by computing the period of  service. The appeals are allowed.  Orders of the learned Single  Judge and the Division Bench are set aside.  The writ petition  is dismissed.  There shall however, be no orders as to costs.